Wiese v. Becerra

263 F.Supp.3d 986

William WIESE, an individual; Jeermiah Morris, an individual; Lance Cowley, an individual; Sherman Macaston, an individual; Adam Richards, in his capacity as Trustee of the Magazine Ban Lawsuit Trust; Clifford Flores, individually and as trustee of the Flores Family Trust ; L.Q. Dang, an individual; Frank Federeau, an individual; Alan Normandy, an individual; Todd Nielsen, an individual; The Calguns Foundation; Firearms Policy Coalition ; Firearms Policy Foundation; and Second Amendment Foundation, Plaintiffs,

v.Xavier BECERRA, in his official capacity as Attorney General of California; and Martha Supernor, in her official capacity as Acting Chief of the Department of Justice Bureau of Firearms, Defendants.

Civ. No. 2:17–903 WBS KJN

United States District Court, E.D. California.

Signed June 29, 2017

George M. Lee, Douglas Allen Applegate, Seiler Epstein Ziegler & Applegate LLP, San Francisco, CA, Raymond Mark Diguiseppe, Law Offices of Raymond Mark Diguiseppe, Southport, NC, for Plaintiffs.

Alexandra Robert Gordon, CA. Dept. of Justice Office of the Attorney General, San Francisco, CA, John Darrow Echeverria, Office of the California Attorney General, Los Angeles, CA, for Defendants.

MEMORANDUM AND ORDER RE: MOTION FOR PRELIMINARY INJUNCTION

WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE

Before the court is plaintiffs' Motion for Issuance of Preliminary Injunction. (Docket No. 28.) The court held a hearing on the request for a preliminary injunction on June 29, 2017.

I. Factual and Procedural History

This case concerns a challenge to California's prohibition on the possession of gun magazines that can hold more than ten bullets, or "large capacity" magazines ("LCM").¹ Although California had banned the purchase, sale, transfer, receipt, or manufacture of such magazines since 2000, it did not ban the possession of these magazines. Fyock v. City of Sunnyvale, 779 F.3d 991, 994 (9th Cir. 2015). In effect, Californians were allowed to keep large capacity magazines they had obtained prior to 2000, but no one, with a few exceptions such as law enforcement officers, has been allowed to obtain new large capacity magazines since 2000.

On July 1, 2016, however, California enacted Senate Bill 1446 ("SB 1446"), which amended California Penal Code § 32310, criminalizing the possession of large capacity magazines as of July 1, 2017, regardless of when the magazines were obtained. Then, on November 8, 2016, the California electorate approved Proposition 63, which largely mirrors SB 1446. The amended version of Section 32310 enacted by Proposition 63 requires that anyone possessing a large capacity magazine either remove the magazine from the state, sell the magazine to a licensed firearms dealer, or surrender the magazine to a law enforcement agency for its destruction prior to July 1, 2017. Cal. Penal Code § 32310(d). The amended version of Section 32310 also provides that possession of a large capacity magazine as of July 1, 2017 constitutes an infraction or a misdemeanor punishable by a fine not exceed $100 per large capacity magazine and/or imprisonment in a county jail not to exceed one year. Id. § 32310(c).

On April 28, 2017, plaintiffs filed the instant action alleging that Section 32310 is unconstitutional. After amending their complaint, plaintiffs filed a motion for a temporary restraining order and preliminary injunction on June 12, 2017 and a renewed motion on June 14, 2017. The court denied the request for a temporary restraining order after a hearing on June 16, 2017 based on an insufficient showing of irreparable harm, given plaintiffs' delay in filing suit and the fact that the court would hold a hearing on plaintiffs' request for a preliminary injunction before the large capacity magazine ban took effect on July 1, 2017. (Docket No. 45.) The parties then filed supplemental briefs regarding plaintiffs' request for a preliminary injunction on June 23, 2017.

II. Discussion

Injunctive relief is "an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (citation omitted). In order to obtain a preliminary injunction, the moving party must establish (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; Fyock, 779 F.3d at 995–96.

Plaintiffs contend that California's large capacity magazine ban violates the Second Amendment, is an unconstitutional taking under the Fifth and Fourteenth Amendments, is void for vagueness, and is overbroad. The court proceeds to examine plaintiffs' showing with respect to each claim below.

A. Second Amendment Challenge

1. Likelihood of Success on the Merits

To evaluate a Second Amendment claim, the court asks whether the challenged law burdens conduct protected by the Second Amendment, and if so, what level of scrutiny should be applied. Fyock, 779 F.3d at 996 (citing United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013) ).

a. Burden on Conduct Protected by the Second Amendment

There appears to be no dispute in this case that many people inside and outside of California up to this point have lawfully possessed large capacity magazines for lawful purposes. See Heller v. District of Columbia, 670 F.3d 1244, 1261 (D.C. Cir. 2011) (" Heller II") (finding that magazines holding more than ten rounds were in "common use"). Indeed, there is evidence that large capacity magazines are commonly possessed by law-abiding citizens for lawful purposes and have been legally possessed by many Californians for many years, notwithstanding California's ban on the transfer of such magazines since 2000. (See Curcuruto Decl. ¶¶ 6–8 (citing estimate that 114 million magazines with eleven or more rounds were in consumer possession between 1990 and 2015, just under half of the overall 230 million pistol and rifle magazines owned during that time); Pls.' Request for Judicial Notice, Ex. A (Cal. Dep't of Justice Finding of Emergency at 1) ("There are likely hundreds of thousands of large-capacity magazines in California at this time.... The Department therefore expects many gun owners to be affected by the new ban."); Youngman Decl. ¶ 9 (large capacity magazines are commonly owned by millions of persons in the United States for lawful purposes including target shooting, competition, home defense, collecting, and hunting).)

Thus, notwithstanding California's existing ban on the transfer of large capacity magazines, it appears that California's ban on large capacity magazines burdens conduct protected by the Second Amendment. See Fyock, 779 F.3d at 998 (district court did not clearly err in finding that a regulation on large capacity magazines burdens conduct falling with the scope of the Second Amendment). But see Kolbe v. Hogan, 849 F.3d 114, 135–37 (4th Cir. 2017) (en banc) (large capacity magazines are not protected by the Second Amendment because they are weapons most useful in military service).²

b. Appropriate Level of Scrutiny

In determining what level of scrutiny applies to the ban on large capacity magazines, the court considers (1) how closely the law comes to the core of the Second Amendment right, which is self-defense, and (2) how severely, if at all, the law burdens that right. Fyock, 779 F.3d at 998–99 (citing Chovan, 735 F.3d at 1138 ). Intermediate scrutiny is appropriate if the regulation does not implicate the core Second Amendment right or if the regulation does not place a substantial burden on that right. Id. at 998–99 (citing Jackson v. City & County of San Francisco, 746 F.3d 953, 964 (9th Cir. 2014) ).

Here, the court finds that intermediate scrutiny is appropriate because "the prohibition of ... large capacity magazines does not effectively disarm individuals or substantially affect their ability to defend themselves." Heller v. District of Columbia, 670 F.3d 1244, 1262 (D.C. Cir. 2011) (" Heller II"); Fyock, 779 F.3d at 999 (quoting Heller II ). The ban may implicate the core of the Second Amendment because it restricts the ability of law-abiding citizens to possess large capacity magazines within their homes for self-defense. See Fyock, 779 F.3d at 999. However, the ban "does not affect the ability of law-abiding citizens to possess the ‘quintessential self-defense weapon’—the handgun. Rather, [it] restricts possession of only a subset of magazines that are over a certain capacity." Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 629, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (" Heller I")).

Indeed, it appears that virtually every other court to examine large capacity magazine bans has found that intermediate scrutiny is appropriate, assuming these magazines are protected by the Second Amendment. See Fyock, 779 F.3d at 999 ; Kolbe, 849 F.3d at 138–139 ; N.Y. State Rifle & Pistol Ass'n, Inc. v. Cuomo, 804 F.3d 242, 258–60 (2d Cir. 2015) ; Heller II, 670 F.3d at 1261–62 ; S.F. Veteran Police Officers Ass'n v. City & County of San Francisco, 18 F.Supp.3d 997, 1002–04 (N.D. Cal. 2014). But see Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015) (upholding municipal ban on assault weapons and large capacity magazines but declining to determine what level of scrutiny applied).

Accordingly, because California's ban does not substantially burden individuals' ability to defend themselves, intermediate scrutiny is appropriate.

c. Application of Intermediate Scrutiny

Intermediate scrutiny requires "(1) the government's stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective." Fyock, 779 F.3d at 1000 (quoting Chovan, 735 F.3d at 1139 ). This test does...